With a jointly released proposed rule this week, officials with the Environmental Protection Agency and the U.S. Army Corps of Engineers say they clarify waterway protection under the Clean Water Act for U.S. streams and wetlands. Others say the new rule goes too far.

Some farm groups and farm-state members of Congress blasted the proposed rule. Sen. Roy Blount (R-Mo.) called it an attempt by the Obama administration to take control of Americans’ private properties.

“This proposed rule would have a devastating impact on Missouri farm families, and it has serious implications for productive activities like dredging, filling, and drainage nationwide,” said Blunt.

EPA and Corps of Engineers officials say the proposed rule clarifies protection for streams and wetlands and will apply to all Clean Water Act programs. It does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court’s more narrow reading of Clean Water Act jurisdiction.

“We are clarifying protection for the upstream waters that are absolutely vital to downstream communities,” said EPA Administrator Gina McCarthy. “Clean water is essential to every single American, from families who rely on safe places to swim and healthy fish to eat to farmers who need abundant and reliable sources of water to grow their crops.”

“Today's rulemaking will better protect our aquatic resources, by strengthening the consistency, predictability, and transparency of our jurisdictional determinations,” said Assistant Secretary of the Army (Civil Works) Jo-Ellen Darcy. “The rule's clarifications will result in a better public service nationwide."

The health of rivers, lakes, bays, and coastal waters depend on the streams and wetlands where they begin, said McCarthy. About 60 percent of stream miles in the U.S. only flow seasonally or after rain, but have a considerable impact on the downstream waters. And approximately 117 million people – one in three Americans – get drinking water from public systems that rely in part on these streams.

Farm and crop protection organizations have been warning EPA intended to expand its authority under the Clean Water Act to declare intermittently-flowing streams and prairie potholes as “waters of the United States.” The designation would allow EPA to include such bodies of water in its regulatory authority.

Specifically, the proposed rule clarifies that under the Clean Water Act and based on the science:

  • Most seasonal and rain-dependent streams are protected.
  • Wetlands near rivers and streams are protected.
  • Other types of waters may have more uncertain connections with downstream water and protection will be evaluated through a case specific analysis of whether the connection is or is not significant. However, to provide more certainty, the proposal requests comment on options protecting similarly situated waters in certain geographic areas or adding to the categories of waters protected without case specific analysis.